Decision Date: 10/31/95 Archive Date:
11/01/95
DOCKET NO. 93-27 599 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Montgomery, Alabama
THE ISSUE
Entitlement to service connection for a mental deficiency.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 15, 1978 to
September 11, 1978.
This appeal arose from a September 1992 rating decision of
the Montgomery, Alabama, Department of Veteran Affairs (VA),
Regional Office (RO), which denied entitlement to service
connection for a "mental condition".
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that she should be granted
service connection for a learning problem. She states that
the problem was first found during basic training, at Fort
Jackson, in South Carolina. She also asserts that she still
has a learning problem, which, in turn, has caused her a
problem with holding a job. She says that testing for
vocational rehabilitation has confirmed a learning problem,
for which she receives disability benefits from the Social
Security Administration. Therefore, she believes that
service connection should be granted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that her claim
is well grounded.
FINDING OF FACT
The veteran was referred for a hearing problem in service
when she was found to manifest a low intelligence quotient.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well grounded
claim for service connection for mental deficiency (low
intelligence quotient). 38 U.S.C.A. §§ 1110, 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question to be answered in this case is
whether the appellant has presented evidence of a well
grounded claim; that is, one which is plausible. If she has
not presented a well grounded claim, her appeal must fail
and there is no duty to assist her further in the
development of her claims because such additional
development would be futile. 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990).
Under the applicable criteria, congenital or developmental
defects, refractive error of the eye, personality disorders
and mental deficiency as such are not diseases or injuries
within the meaning of the applicable legislation. 38 C.F.R.
§ 3.303(c); see Beno v. Principi, 3 Vet.App. 439 (1992).
In the instant case, the service medical records (SMRs)
reveal that the veteran was referred to the Mental Health
Unit for a learning problem during August of 1978. She
displayed no mood or thought disorders. The impression of
the behavioral science specialist was "SAR (low IQ)".
Shortly thereafter, the veteran was given an honorable
discharge from service.
After careful review of the evidence of record, the
undersigned finds that service connection for a mental
disability is not warranted. As noted above, a mental
deficiency, such as a low intelligence quotient, will not be
considered a disease or injury for the purposes of the
applicable legislation. It is not doubted that the veteran
was honorably discharged as a result of this condition.
However, this particular malady does not come into the
statutory definition of a disease or disability for service
connection.
Since the appellant's claim for service connection for this
disorder is not well grounded, it must be dismissed. To do
otherwise and handle the case on the merits would be
inappropriate because it would require the appellant, in the
future, to overcome the inertia of an earlier, adversely
adjudicated claim. See Grottveit v. Brown, 5 Vet.App. 91,
93 (1993). As finality on the merits does not attach, there
can be no prejudice to the veteran in dismissing the claim
even though the RO decision was on the merits. Compare
Bernard v. Brown, 4 Vet.App. 384 (1993). Moreover, the VA
has fulfilled its duty to assist the veteran in
understanding how to file for benefits and what evidence is
required. See Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
The appeal of the claim for service connection for a mental
deficiency is dismissed and so much of the rating action of
September 1992 as denied this claim on the merits is
vacated.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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